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2021 DIGILAW 276 (GUJ)

Amrutbhai Shivabhai Darji v. State of Gujarat

2021-03-26

NIRZAR S.DESAI

body2021
ORDER : 1. By way of this petition, the petitioner has prayed for following reliefs: “8(A) YOUR LORDSHPS may kindly be pleased to issue a Writ of Mandamus or a Writ of Certiorari or a Writ in the nature of Certiorari or a Writ in the nature of Mandamus or any other appropriate Writ, order or direction to quash and set aside the order (Annexure-A) dated 25/02/2015 of the Respondent no.3 in the interest of justice; 8(B) YOUR LORDSHIPS may kindly be pleased to pending admission and final hearing and disposal of this petition, be pleased to stay the operation, implementation and execution of order passed by the Respondent No.3 dated 25/02/2015 and further development of flat on the plot of Lakhudi Talavadi Area and also stay the further payment to other resident in manner of cash or cheque as payment of rent or as any other relief/s by Respondents in the interest of Rule of Equality and justice; 8(C) YOUR LORDSHIPS may kindly be pleased to pass an order to pay a rent of Rs.6,000/- per month from the date of first demolish or notice to remove the resident of petitioner and also give facility of rehabilitation and optional resident instead of present resident for temporary purpose till providing the flat as resident at Lakhudi Talavadi area in the interest of Justice; 8(D) YOUR LORDSHIPS may kindly be pleased to pass the direction on the present Respondents and specifically direct to the Respondent No.3 to 6 to decide the pending representation dated 25/02/2015 of the petitioner within a period of one month in the interest of Justice; 8(E) YOUR LORDSHIPS may kindly be pleased to grant such other and further relief(s) as deemed fit in the interest of justice.” 2. Heard Mr. D. V. Bhavsar, learned advocate for the petitioner, Ms. Nidhi Vyas, learned AGP for respondents nos.1 and 2 State Authorities and Mr. Deep D. Vyas, learned advocate for respondents nos.3 to 6. 3. Brief facts of the present case are stated as under: 3.1. It is the case of the petitioner that since, 1980, the petitioner was residing at 109, Lakhudi Talavadina Chapra, Navrangpura, Ahmedabad and was doing tailoring work since 1980. In the year 2003, respondent no.6 started demolition drive to widen the road. 3. Brief facts of the present case are stated as under: 3.1. It is the case of the petitioner that since, 1980, the petitioner was residing at 109, Lakhudi Talavadina Chapra, Navrangpura, Ahmedabad and was doing tailoring work since 1980. In the year 2003, respondent no.6 started demolition drive to widen the road. At the relevant point of time, as per the case of the petitioner, respondents nos.3 to 6 assured the petitioner that the petitioner will be given an alternative accommodation as per the rehabilitation scheme at the same place. Accordingly, the petitioner also filed an application dated 03/12/2003 seeking an alternative accommodation. The respondents also, vide communication dated 19/12/2003, asked the petitioner to produce Yellow Card which was given to the residents of slums who were residing prior to year 1976 and intimated the petitioner that after the scrutiny if the petitioner is found using the same premises for residential purpose, in that case, the petitioner's case will be considered for an alternative accommodation in accordance with the scheme of the corporation. 3.2. It is also the case of the petitioner that in the year 2004, some of the residents of Lakhudi Talavadi area preferred Special Civil Application No.16819 of 2003 and there the Division Bench of this Court issued certain directions by granting some time to the petitioners of the said petition for making an alternative arrangement and time to vacate the premises was granted up to 12/04/2004. 3.3. In view of the fact that no relief was granted in the aforesaid petition, the concerned respondent issued notice to the petitioner and others for vacating the premises so that encroachment can be removed for the purpose of widening the road. Thereafter, as per the scheme of respondent Ahmedabad Municipal Corporation, alternative accommodation was given to other families. However, the petitioner was not given an alternative accommodation though the petitioner's residence was demolished by the respondent Ahmedabad Municipal Corporation and, therefore, the petitioner has preferred this petition with the prayers which are stated herein above. 4. Mr. Thereafter, as per the scheme of respondent Ahmedabad Municipal Corporation, alternative accommodation was given to other families. However, the petitioner was not given an alternative accommodation though the petitioner's residence was demolished by the respondent Ahmedabad Municipal Corporation and, therefore, the petitioner has preferred this petition with the prayers which are stated herein above. 4. Mr. D. V. Bhavsar, learned advocate for the petitioner submitted that though the petitioner is residing at the address shown in the cause title of the petition as Lakhudi Talavadi area and though all other similarly situated persons case was considered for alternative accommodation by way of giving flat at very place i.e. Lakhudi Talavadi area, the petitioner's case was not considered by the authority. According to Mr.Bhavsar, learned advocate who has drawn attention of the Court to the document produced by the petitioner to establish that the petitioner was residing at Lakhudi Talavadi area, the documents relied upon by Mr. Bhavsar, learned advocate are tax documents of the year 2007, photocopy of election card issued in the year 1996 and rashan card of the petitioner issued in the year 2013 as well as bank passbook of the petitioner. Mr. Bhavsar, learned advocate also draws attention of this Court to the fact that he made an application in on-line Swagat Programme of the Hon'ble the Chief Minister vide application dated 21/12/2014 and pursuant thereto since he received a reply dated 05/01/2015 whereby the application of the petitioner was forwarded to the Municipal Commissioner, Ahmedabad and communication dated 03/02/2015 and some other communications whereby case of the petitioner was directed to be considered by the authority and since inspite of that the case of the petitioner was not considered positively and vide order dated 25/02/2015, as the Assistant Municipal Commissioner, West Zone, Ahmedabad communicated to the Deputy Secretary of the office of the Hon'ble the Chief Minister intimating that since the petitioner could not produced relevant documents in respect of his residence at the time of rehabilitation process, his case for rehabilitation by way of providing alternative accommodation cannot be considered. The said order dated 25/02/2015 is challenged by Mr. Bhavsar, learned advocate for the petitioner by way of present petition. 5. The said order dated 25/02/2015 is challenged by Mr. Bhavsar, learned advocate for the petitioner by way of present petition. 5. Mr.Bhavsar, learned advocate submitted that at relevant point of time though the petitioner could not produce the documents required as stated in order dated 25/02/2015, now all these documents are produced on record to establish that the petitioner was staying at final plot no.190 situated at Lakhudi Talvadi area, Ahmedabad and since the petitioner's residential premises was demolished, the petitioner is also entitled for alternative accommodation as per the rehabilitation policy. Mr. Bhavsar, learned advocate also relied upon the reply given by Public Information Officer of the Ahmedabad Municipal Corporation pursuant to the application made by the petitioner under the provisions of Right to Information Act, 2005 and relying upon that, it is submitted that in all, respondent corporation received 136 applications for providing alternative accommodation but as per the reply of the corporation, in the house constructed by respondent corporation to meet with the requirement of rehabilitation, more than 136 persons were alloted the houses. According to Mr. Bhavsar, learned advocate, in all 533 residential premises and 33 shops were alloted to the persons who were situated there and the respondents are now denying the said benefit to the petitioner that the petitioner is similarly situated and entitled to have alternative accommodation. 6. In view of the aforesaid submissions, Mr. Bhavsar, learned advocate prayed for direction against the respondent corporation that the petitioner's case also must be considered for alternative accommodation. Lastly Mr. Bhavsar, learned advocate also drawn attention of this Court to the RC Book and driving license of the petitioner to suggest that the petitioner was residing at the place even prior to demolition took place and, therefore, the petitioner is entitled for alternative accommodation as per the scheme of the Ahmedabad Municipal Corporation of rehabilitation. 7. Mr. Deep Vyas, learned advocate for the Ahmedabad Municipal Corporation opposed the petition by submitting that entire petition is misconceived one and suffers from delay and latches. He drew attention of the Court to the documents which are produced by Mr. Bhavsar, learned advocate and submitted that all the documents produced by Mr. Bhavsar, learned advocate are the documents which are issued by the competent authorities after year 2006. Mr. He drew attention of the Court to the documents which are produced by Mr. Bhavsar, learned advocate and submitted that all the documents produced by Mr. Bhavsar, learned advocate are the documents which are issued by the competent authorities after year 2006. Mr. Deep Vyas, learned advocate further drew attention of the Court to the property tax documents issued in the year 2006-2007, Rashan Card issued in the year 2013 and even the driving license also bares the date of 03/09/2012. Mr. Vyas, learned advocate further submitted that though time and again the petitioner was asked to produce Yellow Card if the petitioner possesses it, the petitioner could not produce Yellow Card. Mr. Vyas, learned advocate further submitted that the premises used by the petitioner was not being used for residential purpose and the same was used for commercial purpose whereas the rehabilitation policy is applicable only in respect of premises which are used for residential purpose. He also drew attention of this Court to the document dated 24/10/2004 whereby a notice was issued to the petitioner and it was very clearly stated that the property in question for which the petitioner is claiming rehabilitation and asking for alternative accommodation is being used for commercial purpose without permission, land is owned by the corporation and, therefore, the same was considered to be an encroachment and the petitioner was put to notice to remove the said construction within a period of three days. Mr. Vyas, learned advocate relying upon the documents dated 24/10/2004, further submitted that the aforesaid communication was addressed to the petitioner in connection with removing illegal encroachment near Town Planning road as the petitioner's premises was causing hindrance in widening of the road and, therefore, notice was issued. Thereafter, further demolition took place in the year 2006 and thereafter during the entire rehabilitation process which started in the year 2011 i.e. after about five years of demolition took place, though entire rehabilitation process was over, at no point of time, the petitioner raised any claim either by preferring any application or by preferring any other proceedings before any competent court and this is only after allotment in the year 2014, the petitioner raised the grievance that his case for alternative accommodation in the rehabilitation schme has not been considered positively. Therefore, according to Mr. Therefore, according to Mr. Vyas, learned advocate, the petitioner is not entitled to get rehabilitation scheme benefit on two counts i.e. (1) the petitioner is not eligible and entitle as per the scheme of rehabilitation and (2) on the ground of delay. 8. Mr. Deep Vyas, learned advocate further submitted that as regards the information sought by the petitioner under the Right to Information Act, which is produced at page-51 of the petition along with rejoinder of the petitioner, the Co-ordinate Bench of this Court vide order dated 06/06/2017 specifically directed the respondent corporation to justify the said facts and, therefore, an affidavit was preferred by the Ahmedabad Municipal Corporation as directed as further affidavit dated 28/08/2017 wherein the things were clarified elaborately before this Court and thereafter aforesaid affidavit was never questioned by the petitioner and, therefore, now the petitioner cannot say that the corporation has committed any illegality by constructing 533 residential units and 33+2 commercial shops. According to Mr. Vyas, learned advocate, affidavit amply clarifies the fact that the reference to 136 applications was made which according to the affidavit dated 28/08/2017 whereby additional applications then the applications which were reasonable to be submitted by the persons who were entitled to have an alternative accommodation as per the scheme of rehabilitation policy and, therefore, it was never a case that more number of units then the applications received by the Ahmedabad Municipal Corporation are constructed and that with the said number of applications, some other persons also who were not eligible for alternative accommodation as per the policy given alternative accommodation. On the strength of aforesaid argument, Mr.Deep Vyas, learned advocate prays for dismissal of the petition. 9. Ms. Nidhi Vyas, learned AGP submitted that role of the State Government is very limited in the entire controversy and they are only formal party and, therefore, appropriate order may be passed. 10. Considering the submissions made by learned advocates appearing for the respective parties and after examining and perusing of all the documents available on record, this Court is of the view that it is true that the petitioner was a resident of Lakhudi Talavadi area. However, whether the petitioner was residing at Lakhudi Talavadina area or was using the premises for commercial purpose is a disputed question of fact. As submitted by Mr. However, whether the petitioner was residing at Lakhudi Talavadina area or was using the premises for commercial purpose is a disputed question of fact. As submitted by Mr. Deep Vyas, learned advocate, the policy is only for alternative accommodation in respect of the premises which were used for residential purpose and it is a specific case of the respondent corporation that the petitioner was using the premises for commercial purpose as can be seen from the notice dated 24/10/2004. The Court has also considered the property tax bill produced by the petitioner at page-24 wherein it is stated that the premises was used as shop and, therefore, it is evident that the petitioner occupying the premises for using it as commercial purpose. Further almost all the documents which are relevant for alternative accommodation were documents which were issued after year 2006 i.e. after demolition took place. However, though the election card issued in respect of present petitioner is of year 1996 but that is not much significant and as per the policy of the corporation only those persons who were eligible for alternative accommodation and, therefore, even if the election card issued to the petitioner shows that the petitioner was occupying the premises even prior to 2006 then also it will not help the petitioner any more. 11. I have also considered the fact that the petitioner at relevant point of time has not made any application for allotment of plot which was provided to the similarly situated persons by way of alternative accommodation. That the process of alternative accommodation under the policy of rehabilitation commence in the year 2011 and allotment was done and even allottees started occupying the premises till entire process got over, the petitioner set idle and did not even take any step as can be seen from the record or raised any grievance in respect of the fact that he has not been provided with any alternative accommodation and when in the year 2014, entire process was over, the petitioner raised grievance by on-line Swagat Programme. All these clearly establishes the fact that the petitioner has chosen to agitate the issue belatedly. Further more, to provide alternative accommodation is confined only to those persons who are residents or having slums prior to year 1976. As canvassed by Mr. All these clearly establishes the fact that the petitioner has chosen to agitate the issue belatedly. Further more, to provide alternative accommodation is confined only to those persons who are residents or having slums prior to year 1976. As canvassed by Mr. Deep Vyas, learned advocate, the petitioner was not having Yellow Card which can establish that the petitioner was there at the cite even prior to 1976 and which would entitle the petitioner to have an alternative accommodation if the petitioner's premises is demolished on account of widening of town planning road. Since the documents produced by the petitioner by way of this petition even after number of years after rehabilitation process is over, the Court is of the view that those documents are insufficient and would not confer any right upon the petitioner to seek any alternative accommodation as per rehabilitation scheme of the respondent corporation and, therefore, I do not find any reason to interfere with the order passed by the respondent corporation dated 25/02/2015 and, therefore, the petition deserves to be dismissed and the same is dismissed. Notice is discharged. No order as to costs.